Mirror of Justice

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Wednesday, February 4, 2015

Jacob Levy, Rationalism, Pluralism, and Freedom

Speaking of new books, I was delighted to see that this book is now available from Oxford University Press. I've eagerly followed Jacob Levy's work for many years (this 2003 blog post at the Volokh Conspiracy when I was still in practice was my introduction to the important work of John Neville Figgis). I look forward to reading the book and will post on it when I do, but--based on the excerpts and conference presentations I've seen from it--I already know this will join (among others) John Inazu's Liberty's Refuge and Nancy Rosenblum's Membership and Morals as essential reading for thinking about associations, pluralism, and liberalism.

February 4, 2015 in Moreland, Michael | Permalink

Liberal Political Theory and the Family

This review by David Archard at the Notre Dame Philosophical Reviews of a new book by Harry Brighouse and Adam Swift raises a number of interesting questions about liberal political theory and the family. I look forward to reading the book, which Archard reviews quite favorably. I do think it would be important to think through carefully what the reviewer says in these passages I've quoted below about the framing of the initial question tackled by the book--there is an implication (or an outright assertion) that we have a sphere of justice (coterminous with/determined by the state or the Rawlsian "basic structure of society") into which we have to figure out where to fit the family, and that's a problem. This sits in considerable tension, I think, with a view of the family as a "society in its own right" (see Dignitatis Humanae, para. 5) or with the importance of the principle of subsidiarity in understanding the relation between the state and the family (see Familiaris Consortio, para. 45). But, as I say, the initial framing of the question makes such views all but impossible to entertain.

The problem for justice was, early on, neatly summarized by James Fishkin in the form of a ‘trilemma’: liberals are committed to three principles that cannot all simultaneously be realized. These are the rights of parents to choose for their children; a principle of equal opportunity; and a meritocratic principle governing the distribution of offices and jobs on merit. Fishkin thought the trilemma irresoluble, and others have tried to find a way out of the problem by the abandonment or trimming of one or more of the principles. It is nearly always the family that seems most in danger on these approaches.


After all, one response to a conflict of values is just to accept that the conflict is irresoluble and acknowledge that the best feasible state of affairs is one in which there will be some moral loss. On this account it is better to have the family than not to, but any society that does have families is not going fully to realize justice (and not merely realize justice as understood given the existence of the valued family).

February 4, 2015 in Moreland, Michael | Permalink

Thursday, January 29, 2015

More on the NLRB Decision in Pacific Lutheran

Over at the Law and Liberty site, Joseph Knippenberg has a post looking at the decision by the NLRB in the Pacific Lutheran case I mentioned here. A bit from his analysis:

First, the Board’s balancing act impels it to make judgments—historically eschewed by the Supreme Court—about the religious character of various educational and employment practices. The Board’s deep intrusion into the university’s functioning is based on a “stark error,” said Board member Johnson in dissent, for it elevates the rights granted by the National Labor Relations Act to the same level as a right guaranteed by the Constitution. And in its willingness to use state power to protect legislatively granted rights, the Board assumes the authority to make judgments about how religious institutions are to conduct their business, not just in terms of employment practices but also in terms of how faculty roles have to be defined in order to exempt them from regulation.

This is, needless to say, a serious diminution of the free exercise protections religiously affiliated colleges and universities have hitherto enjoyed.

Second, and connected to this, I would note the majority’s assumption about the only kind of religious institution that may enjoy the full range of First Amendment protections. To use the invidious language the Supreme Court once used to describe such schools, only “pervasively sectarian” colleges and universities—those on the margins of an increasingly secular society—can expect to be exempt from NLRB regulation.

January 29, 2015 in Moreland, Michael | Permalink

Thursday, January 15, 2015

Inviting Applications for the 2015 Libertas Project Summer Workshops

Libertas Header

The Libertas Project at Villanova University School of Law is seeking applications for participation in its 2015 summer workshops on religious and economic freedom. The project will seek to bring together concerns about religious freedom and economic freedom in a framework that situates both topics amid a larger conversation about freedom, law, and virtue. The Libertas Project aspires to broaden the academic and public appreciation for religious freedom as a human good, while also bringing the insights of religion to bear on conversations about economic freedom as an essential component of a free society. A more detailed description of the project’s inspiration and goals is below. The Libertas Project is made possible through the support of a grant from the John Templeton Foundation. 

To address these issues of religious and economic freedom, the Libertas Project will host a series of summer workshops at Villanova University School of Law. Each workshop will be comprised of approximately 20 participants drawn primarily from law but also welcoming scholars from related fields (philosophy, political science, religion, business, and economics, for example) as well as judges, policymakers, and journalists. The workshops will be structured around a set of common readings on each topic with group discussions, break-out sessions, and meals in order to foster scholarly networks and collaborative projects among the participants. 

The dates for the 2015 summer workshops are July 6-8 on religious freedom and July 13-15 on economic freedom. Participants in the workshops will each receive an honorarium of $1500. 

The workshop moderators will be Richard Garnett (University of Notre Dame), Marc DeGirolami (St. John’s University), and Zachary Calo (Valparaiso University) on religious freedom and Thomas Smith (Villanova University) and Mary Hirschfeld (Villanova University) on economic freedom. 

The workshops will take place at Villanova University School of Law. Villanova is located 12 miles west of Philadelphia, the fifth-largest city in the United States and the second-largest city on the East Coast. The campus is situated on Philadelphia’s suburban Main Line, and Villanova is easily accessible by train, plane, car, or regional public transportation. 

Due to limited travel funds, participants are asked to obtain travel funding from their home institutions, but travel scholarships are available. 

To apply, please submit a brief statement of interest (and specifying whether you are interested in the workshop on economic freedom or religious freedom) with a current c.v. to the project leader, Michael Moreland, Vice Dean and Professor of Law at Villanova University School of Law (Moreland@law.villanova.edu) by March 1, 2015


The Libertas Project addresses two topics related to freedom in the context of law and religion in American public life: religious freedom and economic freedom. 

Religious freedom and economic freedom, though rarely treated together, illustrate both some of the shortcomings and the possibilities of American intellectual life, most especially in American law and legal scholarship. One of the challenges faced in American legal scholarship and political theory on religious freedom is the reduction of religious freedom to constitutional law, with little engagement with theological arguments or empirical research on religion in American public life. The leading casebooks and materials on law and religion – even those most sympathetic to religious views – often contain little engagement with theological sources. The American legal discourse on religious freedom is dominated by an understanding shaped by the constitutional framers and then worked out in U.S. Supreme Court doctrine. While important, such a focus omits what is often genuinely important about religious freedom and why it is worthy of constitutional protection in the first place. In addition to understanding the constitutional tradition, lawyers and policymakers also need to understand religious questions as they arise across theological traditions as well as in the history of political thought and practice. 

At the same time, public discourse about economic freedom tends to avoid engagement with religion, resulting in an unnecessarily cramped view of the possibilities for mutual illumination between economic and religious aspirations. In some contemporary schools of thought, human beings are understood solely in terms of narrow economic motives. But if religion can be understood as a school for the cultivation of right desire for the benefit of individuals and the common good, putting religious traditions in conversation with economic theory and practice is critical to the effort to raise the most important questions about the meaning and purpose of economic activity: How does the cultivation of an entrepreneurial spirit liberate human capital for human prosperity in a good society? How does such a society manage risk and reward? How are economic motivations better understood when we place them in theological and social contexts? What is the relationship of the entrepreneurial spirit to the meaning of justice and equality? What resources might religious traditions bring to bear on the meaning of economic freedom? 

The Libertas Project seeks to bring together legal, theological, and philosophical approaches in search of innovative answers to difficult legal and policy questions about human freedom, both economic and religious. With law students, legal scholars, and legal practitioners as one of the primary audiences, the insights produced by the project will inspire in current and future lawyers and policymakers a renewed commitment to both moral character development and free markets. The combination of economic freedom and religious freedom promises a society of responsible persons working toward the common good. In sum, the Libertas Project seeks to foster a greater understanding of the ways religious and economic freedom can bring about the development of character that advances the prosperity and health of the good society.

January 15, 2015 in Moreland, Michael | Permalink

Monday, January 12, 2015

Walter Berns, RIP

The noted political philosopher and constitutional scholar Walter Berns died on Saturday at the age of 95. Berns wrote widely and perceptively about many issues, including and especially the First Amendment starting with his 1957 book Freedom, Virtue and the First Amendment. His writing on the religion clauses in his 1976 collection The First Amendment and the Future of American Democracy broadly (and presciently for the time) argued for a relaxed view of government aid to religion under the Establishment Clause and a no-right-of-exemption view of the Free Exercise Clause (he was quite critical of Wisconsin v. Yoder, for example). Indeed, in some ways Berns was an intellectual father of Employment Division v. Smith.

Berns's view that freedom of speech is at the service of cultivating a virtuous citizenry (and thus that cases such as Cohen v. California are wrongly decided) is widely rejected now, though one encounters a vestige of it in Justice Alito's dissents in Snyder v. Phelps and United States v. Stevens. Even those of us who agree with the now-dominant libertarian approach to freedom of speech, however, should appreciate the concerns that motivated Berns:

Morality cannot be legislated, we are told and have reason to believe, but the law can lend support to the moral dispositions of a people. Tocqueville had this in mind when he warned that the religion which had "struck its roots deep into a democracy" must be preserved, watched carefully "as the most precious bequest of aristocratic ages." The principle can be generalized to apply to all those decent habits that are required for self-government. Liberal democracies especially are limited with respect to the means they may properly adopt to generate these habits or moral dispositions, and it is therefore especially important that ours preserve those with which it began. The Supreme Court has not appreciated the role that law must necessarily play in this project. The First Amendment and the Future of American Democracy (1976), p. 228.

On a personal note, when I worked in Washington I lived in Chevy Chase not far from Berns, and I would frequently encounter him on the Metro red line after we had initially met at an AEI event on his book Making Patriots. We would talk about Iowa (he received his undergraduate degree from the University of Iowa), politics, and Supreme Court cases. He was a lively conversationalist and a grand public intellectual. Requiescat in pace.

January 12, 2015 in Moreland, Michael | Permalink

Monday, December 29, 2014

St. Thomas Becket and Magna Carta


Today is the Feast of St. Thomas Becket, murdered on this date in 1170. I've reposted below a post from 2012 with an excerpt from John Guy's fine biography of Becket.

And for those looking to learn more about medieval English law and its legacy, I commend the exhibit on Magna Carta now on display at the Library of Congress in Washington, including a rare viewing of the Lincoln Cathedral original of Magna Carta. It was Henry II's feckless youngest son John, of course, who was forced to issue Magna Carta in 1215. And the (likely) principal author of Magna Carta was Becket's successor as Archbishop of Canterbury, Stephen Langton, who, like Becket, was forced into exile in France by the King but returned to England to lead the struggle against an overweening monarch. Recall that the first clause of Magna Carta is: "That We have granted to God, and by this present charter have confirmed for us and our heirs in perpetuity, that the English Church shall be free, and shall have its rights undiminished, and its liberties unimpaired." ("In primis concessisse Deo et hac presenti carta nostra confirmasse, pro nobis et heredibus nostris in perpetuum quod Anglicana ecclesia libera sit, et habeat jura sua integra, et libertates suas illesas.")

From December 29, 2012:

A blog devoted to Catholic legal theory can hardly let pass today's Feast of St. Thomas Becket (c.1181-1170). Peter Glenville's 1964 film with Richard Burton as Becket and Peter O'Toole as Henry II is a classic. More recently, the eminent Tudor historian John Guy (author of a number of fine books on Thomas More) has written a splendid biography of Becket--a taste here:

For his attack on the church's claim of immunity from secular jurisdiction, Anglo-American lawyers and constitutional historians in the nineteenth century would put on rose-colored spectacles and reinvent Henry as a legal reformer avant la lettre, a pioneer of fair trials and equality before the law who paved the way for some of the most important clauses later incorporated into Magna Carta and the U.S. Constitution and Bill of Rights. In reality, however, his actions showed that the rights of the accused could always be overridden by political considerations and the king's will. Far from remodeling the legal system and the courts in the interests of justice and the common good, Henry sought to strengthen his own power. And far from being a pioneer of "equitable" or "impartial" justice, he happily presided over his own court in the Battle Abbey case and at Becket's trial for embezzlement and false accounting at Northampton, acting simultaneously as chief counsel for the prosecution, judge, and jury. In response, Thomas would prove that a middle-class Londoner could transcend his social origins and challenge a ruler who he believed was degenerating into a tyrant, but it would cost him his life. Thomas More would take a similar path in Henry VIII's reign, and it may be no coincidence that More's working library contained many of the same books as Becket's.

John Guy, Thomas Becket: Warrior, Priest, Rebel (Random House, 2012), p. 338.

December 29, 2014 in Moreland, Michael | Permalink

Monday, December 22, 2014

A Bad Decision from the NLRB

The National Labor Relations Board has issued its long-anticipated decision in the case of Pacific Lutheran University (available here), which is the first in a recent series of cases involving adjunct faculty unionization efforts at religiously-affiliated colleges and universities to be decided by the full Board (a number of Catholic universities—Duquesne, Seattle, Manhattan, and St. Xavier—have been involved in similar cases).

The case is already garnering some commentary (see this story at Inside Higher Ed) for its application of the Supreme Court’s NLRB v. Yeshiva University decision about whether faculty at private universities are managerial employees (and thereby precluded from collective bargaining under the NLRA). My interest is more in the Board’s (mistaken in my view, as I laid it out in testimony available here before two House Subcommittees in 2012) rejection of the test articulated by then-Judge Breyer in Universidad Central de Bayamon v. NLRB , 793 F.2d 383 (1st Cir. 1985) and the D.C. Circuit in University of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002) for when the Board can exercise jurisdiction over unionization efforts at religiously-affiliated colleges and universities. On that issue, the Board divided 3-2, with dissents from Members Phillip Miscimarra and Harry Johnson. Amicus briefs in support of Pacific Lutheran were submitted by, among others, the Association of Catholic Colleges and Universities and the Association of Jesuit Colleges and Universities.

Recall that under the Great Falls test, a religious institution is exempt from NLRB jurisdiction if: (1) the institution “holds itself out to students, faculty and community as providing a religious educational environment,” (2) the institution “is organized as nonprofit,” and (3) the institution “is affiliated with, or owned, operated, or controlled, directly or indirectly, by a recognized religious organization, or with an entity, membership of which is determined, at least in part, with reference to religion.” 278 F.3d at 1347. In the Pacific Lutheran case, the Board decided to go along with the first component of that test “as a threshold matter” if a school “holds itself out as providing a religious educational environment” (slip op. at 6). This is a slight improvement over some prior decisions that had sought to figure out whether a school was “substantially religious” in the first place by trolling through the core curriculum and rates of attendance at religious services.

But what the Board gives with one hand, it takes away with the other when it imposes a requirement that “the university holds out its petitioned-for faculty members as performing a specific role in creating and maintaining that [ie, religious educational] environment” (slip op. at 7) (emphasis added), a requirement that Pacific Lutheran could not meet in the Board’s view. On this issue, the Board has a remarkably cramped account of whether faculty contribute to the religious mission of a university. The Board holds that where a school does not indicate that “faculty members are expected to incorporate religion into their teaching or research, that faculty members will have any religious requirements imposed on them, or that the religious nature of the university will have any impact at all on their employment” (slip op. at 8), then the university is not “holding out” its faculty as performing a religious function. Most troubling is the Board’s egregious claim that “[t]his is especially true when the university also asserts a commitment to diversity and academic freedom, further putting forth the message that religion has no bearing on faculty members’ job duties or responsibilities" (id.).

The problem with the “holding out faculty as performing a specific religious function” test is that it throws the Board back into the sort of intrusive religious inquiry that courts from NLRB v. Catholic Bishop, 440 U.S. 490 (1979) to Great Falls have said runs a high risk of unconstitutional interference with religion. On the Board’s view, only when faculty engage in “religious indoctrination or religious training” or where a school imposes a narrow religious test for hiring would the Board find no jurisdiction (slip op. at 9). But this is the Board’s view of what counts as factors sufficient for faculty at a school to be part of its religious mission, a view not shared by Pacific Lutheran (or, I submit, most Catholic universities). In its opinion, the Board begs the question by asserting its own (highly contestable) view of what constitutes the religious mission of a university, including a rejection of academic freedom and curricular and hiring practices in which very few schools engage. As Member Johnson puts it: 

The failings of the majority’s new test are made manifest by the majority’s dismissive treatment of the actual record here. The majority’s analysis is too narrowly focused on evidence of documented commitment of the faculty to indoctrination, orthodoxy, and exclusion. As a result, the majority appears to require that, to meet its burden, there must be evidence establishing that the university’s mission centers on blatant religious indoctrination or proselytization, that the institution fails to grant religious freedom or freedom of inquiry, and that the institution denies nonbelievers from participating on campus as students and faculty members. Because PLU, in its literature, does not correspond to this crabbed view of how a religion should express itself in a university environment, the majority finds that the faculty are, ipso facto, not held out as performing a specific religious function (slip op. at 37).

There is, of course, much more to say, but let me add a final note that this is not (but will be portrayed as) a matter of being crudely “pro-union” or “anti-union.” One can affirm (as I do) the Catholic Church’s historic commitment to the right of workers to organize while also affirming (as I do) the right of religious institutions to be free (in central respects pertaining to their mission) of government interference in their internal governance with regard to faculty matters. That is a difficult but necessary argument to make, and this decision (and appeals from it or similar cases) will provide many opportunities to do so.

December 22, 2014 in Moreland, Michael | Permalink

Monday, December 8, 2014

Herbert McCabe, OP on the Immaculate Conception

We often remark here at Mirror of Justice that the central questions of Catholic legal theory are those of human anthropology and human nature. (Even if, like Elizabeth Anscombe, I'm not at all sure that [modern] reflection on "the self" is a meaningful or important philosophical question, see Faith in a Hard Ground: Essays on Religion, Philosophy, and Ethics at p. 67.) On what it means for said human nature to be redeemed, here is an excerpt from a homily by my late friend Herbert McCabe, OP on today's feast:

In Mary the redemption reaches down to the roots. In us it is not yet radical, but through our death in Christ and our resurrection in him it is to become so. So far we are only sacramentally redeemed, in the sacramental death and resurrection of baptism - this is something real, it is not merely play-acting, but it is only sacramental, it is not yet in our flesh. The redemption of Mary is pre-sacramental, she does not need baptism or Eucharist, she needs Christ only and has him in her existence in her very flesh. For this reason her redemption, which is pre-sacramental, is a sign and foretaste of the post-sacramental, the life of the risen body, the future kingdom. Her Assumption is the beginning of the resurrection of all who are taken up into Christ’s resurrection.

This, then, is how we are to cash the doctrine of the Immaculate Conception. This is the difference in practice that the doctrine makes. We are not to look for this difference in the biography of Our Lady, in her character or in her behaviour. In this sense the doctrine is not about that. It is not, for instance, about the fact that she committed no sin. You could hold, as Thomas Aquinas did, that she was sinless and still deny, as he did, the Immaculate Conception. The Immaculate Conception does not make that sort of difference to Mary; it did not make any noticeable difference to her - as I have suggested there is no reason to suppose that she knew about it. What it makes a difference to is our understanding of what it means for her to be redeemed and therefore what it will eventually mean for us to be redeemed. To assert this doctrine is to assert the mysterious fact that our holiness will not stop short of the roots of our being, that we too are to become radically holy. 

And this is a strange doctrine. At the moment we are forgiven sinners; we are forgiven but we are people who have been sinners, we have been subject to the sin of the world, moreover we have at times opted for the sin of the world. Both things are true: we have contrition for our sins even as we celebrate our forgiveness. Being realistic and honest and therefore contrite about our sins is the sign and result of our being forgiven. (That is why confession is an important part of the sacrament of Penance.)

What we celebrate on the feast of the Immaculate Conception is that Christ’s love for us brings us further than this. What he wants for us is not just that we should be forgiven sinners but that we should be as though sin had never been. Redemption for us will involve a rebirth from an immaculate conception. Our redemption will not just be the successful end of a journey, the triumphant culmination of the history of man, but in some utterly mysterious way we will be freed from our history, or our history will be taken up into some totally new pattern in which even our sins become part of our holiness. We will somehow be able to accept them as God accepts them. There will be no more sorrow for sin, no more remorse over the past, no more contrition; we will be radically and totally free: ‘And all things shall be well and all manner of things shall be well ... when the fire and the rose are one’ (God Matters, pp. 213-14).

December 8, 2014 in Moreland, Michael | Permalink

Thursday, December 4, 2014

Scarisbrick on God's Traitors

A good bit of our understanding of religious freedom and establishment is shaped by the legacy of reformation, restoration, persecution, and toleration in Tudor and Stuart England, and so along comes historian J.J. Scarisbrick in the Weekly Standard with this review of Jessie Childs's God's Traitors: Terror and Faith in Elizabethan England (Oxford UP). A short excerpt is pasted below. As an aside, Scarisbrick is a remarkable figure in his own right--the author in 1968 of the definitive biography of Henry VIII (which inaugurated the revisionist view of Eamon Duffy and others arguing that the English Reformation was not all light and progress) and, along with his wife Nuala, one of the founders of the British pro-life movement.

[W]hat a story [God's Traitors] tells: plots and counterplots, assassinations and Armadas, horrendous torture and unspeakably gruesome executions, stinking prisons, secret messages written in orange juice (invisible until heated), spies and traitors and clandestine printing presses. Hollywood could not have made it up.

Jessie Childs is not Roman Catholic, but she is remarkably fair and astute in her judgments and (though she should not say that Catholics believe that the Eucharistic presence is a physical one) has a deep understanding of Catholic culture. She understands how bewildering it was for Catholics to find that the faith of their forefathers (and of English kings and queens since time immemorial) was now treason and that they apparently had to choose between queen and pope—let alone between queen and the king of Spain, who conveniently believed that Holy Mother Church was best served by Spanish imperialism.

December 4, 2014 in Moreland, Michael | Permalink

(Qualified) Admiration for Thomas Hobbes

Thomas Hobbes died on this date 335 years ago in 1679 (aged 91--a remarkably long life for someone in the seventeenth century!), allegedly uttering "Now I take a great leap in the dark." I have read Leviathan in a first-year elective on justice for several years now, and I am continually amazed by the sheer brilliance of the book and regard it as among the great works of our civilization. Every student of the law should, I think, grapple with Hobbes's insights into human nature, political power, and the origins of law, even if one must (as I do) disagree in the end. The great Catholic philosopher Peter Geach was also an admirer of Hobbes, and here is a bit from his splendid paper "The Religion of Thomas Hobbes" (contrary to the conventional view that Hobbes was a closet atheist, Geach argues that Hobbes was a heterodox Christian):

The writings of Hobbes manifest a quality that he shares with certain other writers: with Thucydides, with the Old Testament historiographers, with Schopenhauer in some works. All these writers have the power to present drily, without rhetorical condemnation, what men can be like and under stress often are like: that is, pretty nasty. Men go in for self-flattering illusions and dislike authors who hold up a mirror to the ugly human face. As the epitaph says, few have loved Thucydides son of Oloros (of course he did win the love and admiration of Hobbes); abuse of Schopenhauer, as of Hobbes, is a commonplace; Msgr Knox found Old Testament histories hard to take. Splutters of disgust and indignation against these authors who have dared to tell the truth are often grimly comic in their effect; reality has a way of vindicating the truth-tellers against the flatterers. As the song says, if you break the bloody glass (sc. barometer) you won't stop the weather.

December 4, 2014 in Moreland, Michael | Permalink